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FEDERAL ARBITRATION ACT House Judiciary Committee

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FEDERAL ARBITRATION ACT House Judiciary Committee Powered By Docstoc
					FEDERAL ARBITRATION ACT: IS THE CREDIT
  CARD INDUSTRY USING IT TO QUASH LEGAL
  CLAIMS?



                                 HEARING
                                       BEFORE THE

              SUBCOMMITTEE ON
      COMMERCIAL AND ADMINISTRATIVE LAW
                                           OF THE


      COMMITTEE ON THE JUDICIARY
       HOUSE OF REPRESENTATIVES
              ONE HUNDRED ELEVENTH CONGRESS
                                     FIRST SESSION



                                       MAY 5, 2009



                           Serial No. 111–39

              Printed for the use of the Committee on the Judiciary




                                          (
        Available via the World Wide Web: http://judiciary.house.gov


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                      COMMITTEE ON THE JUDICIARY
                       JOHN CONYERS, JR., Michigan, Chairman
HOWARD L. BERMAN, California             LAMAR SMITH, Texas
RICK BOUCHER, Virginia                   F. JAMES SENSENBRENNER, JR.,
JERROLD NADLER, New York                   Wisconsin
ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia      HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina           ELTON GALLEGLY, California
ZOE LOFGREN, California                  BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas                DANIEL E. LUNGREN, California
MAXINE WATERS, California                DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts       J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida                   STEVE KING, Iowa
STEVE COHEN, Tennessee                   TRENT FRANKS, Arizona
HENRY C. ‘‘HANK’’ JOHNSON, JR.,          LOUIE GOHMERT, Texas
  Georgia                                JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico             TED POE, Texas
MIKE QUIGLEY, Illinois                   JASON CHAFFETZ, Utah
LUIS V. GUTIERREZ, Illinois              TOM ROONEY, Florida
BRAD SHERMAN, California                 GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
           ´
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York

              PERRY APELBAUM, Majority Staff Director and Chief Counsel
            SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel



           SUBCOMMITTEE    ON   COMMERCIAL     AND   ADMINISTRATIVE LAW
                        STEVE COHEN, Tennessee, Chairman
WILLIAM D. DELAHUNT, Massachusetts     TRENT FRANKS, Arizona
MELVIN L. WATT, North Carolina         JIM JORDAN, Ohio
BRAD SHERMAN, California               DARRELL E. ISSA, California
DANIEL MAFFEI, New York                J. RANDY FORBES, Virginia
ZOE LOFGREN, California                HOWARD COBLE, North Carolina
HENRY C. ‘‘HANK’’ JOHNSON, JR.,        STEVE KING, Iowa
  Georgia
ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia
JOHN CONYERS, JR., Michigan

                          MICHONE JOHNSON, Chief Counsel
                          DANIEL FLORES, Minority Counsel




                                        (II)
                                               CONTENTS

                                                       MAY 5, 2009

                                                                                                                              Page

                                             OPENING STATEMENTS
The Honorable Steve Cohen, a Representative in Congress from the State
  of Tennessee, and Chairman, Subcommittee on Commercial and Adminis-
  trative Law ...........................................................................................................       1
The Honorable Trent Franks, a Representative in Congress from the State
  of Arizona, and Ranking Member, Subcommittee on Commercial and Ad-
  ministrative Law ..................................................................................................           2
The Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress
  from the State of Georgia, and Member, Subcommittee on Commercial
  and Administrative Law ......................................................................................                 3
The Honorable Lamar Smith, a Representative in Congress from the State
  of Texas, and Ranking Member, Committee on the Judiciary .........................                                            5
The Honorable Daniel Maffei, a Representative in Congress from the State
  of New York, and Member, Subcommittee on Commercial and Administra-
  tive Law ................................................................................................................     6
The Honorable Howard Coble, a Representative in Congress from the State
  of North Carolina, and Member, Subcommittee on Commercial and Admin-
  istrative Law ........................................................................................................        7
The Honorable Darrell E. Issa, a Representative in Congress from the State
  of California, and Member, Subcommittee on Commercial and Administra-
  tive Law ................................................................................................................     7

                                                       WITNESSES
Michael D. Donovan, Esq., National Association of Consumer Advocates
  Oral Testimony .....................................................................................................          9
  Prepared Statement .............................................................................................             11
Richard H. Frankel, Esq., Drexel University Earle Mack School of Law
  Oral Testimony .....................................................................................................         99
  Prepared Statement .............................................................................................            101
Christopher R. Drahozal, Esq., University of Kansas School of Law
  Oral Testimony .....................................................................................................        121
  Prepared Statement .............................................................................................            123
David Arkush, Esq., Public Citizen
  Oral Testimony .....................................................................................................        139
  Prepared Statement .............................................................................................            141

                                                        APPENDIX

                           MATERIAL SUBMITTED                 FOR THE        HEARING RECORD
Response to Post-Hearing Questions from Michael D. Donovan, Esq., National
  Association of Consumer Advocates ...................................................................                       176
Response to Post-Hearing Questions from Richard H. Frankel, Esq., Drexel
  University Earle Mack School of Law ................................................................                        181
Response to Post-Hearing Questions from Christopher R. Drahozal, Esq.,
  University of Kansas School of Law ...................................................................                      185
Response to Post-Hearing Questions from David Arkush, Esq., Public Citizen                                                    191



                                                               (III)
FEDERAL ARBITRATION ACT: IS THE CREDIT
 CARD INDUSTRY USING IT TO QUASH
 LEGAL CLAIMS?

                     TUESDAY, MAY 5, 2009

                   HOUSE OF REPRESENTATIVES,
                    SUBCOMMITTEE ON COMMERCIAL
                            AND ADMINISTRATIVE LAW,
                            COMMITTEE ON THE JUDICIARY,
                                             Washington, DC.

  The Subcommittee met, pursuant to notice, at 10:10 a.m., in
room 2141, Rayburn House Office Building, the Honorable Steve
Cohen (Chairman of the Subcommittee) presiding.
  Present: Representatives Cohen, Delahunt, Maffei, Lofgren,
Johnson, Scott, Franks, Jordan, Smith, Coble, and Issa.
  Staff Present: (Majority) Norberto Salinas, Counsel; Adam Rus-
sell, Professional Staff Member; and (Minority) Daniel Flores,
Counsel.
  Mr. COHEN. This hearing of the Judiciary Subcommittee on Com-
mercial and Administrative Law will now to come to order.
  Without objection, the Chair will be authorized to declare a re-
cess of the hearing.
  I will now recognize myself for a short statement.
  Within the last year, we have seen an increase in foreclosures
and job losses and a drop in value of retirement accounts. Several
congressional Committees have held hearings to determine what
caused the economic downturn and what impact the downturn has
had on consumers, workers, and businesses.
  This Subcommittee recently held a hearing to examine whether
the credit card industry’s practices are bankrupting Americans. We
heard testimony from witnesses that excessive fees and interest
rates, unilateral change in term provisions and changes in credit
limits have exacerbated the burden borne by credit card debtors.
The growing burden, we learned, has pushed some debtors into
bankruptcy.
  Just last week, Congress passed the Credit Cardholder’s Bill of
Rights Act in an attempt to shield cardholders from some of the
most outrageous practices of the credit card industry. Some of
these practices have hindered some cardholders’ ability to weather
this downturn.
  Today’s hearing will focus on arbitration and how its use has im-
pacted consumers, specifically credit cardholders. Nearly every
credit card issuer includes an arbitration agreement in their terms
                                (1)
                                 2

of use of contracts with cardholders. Arbitration agreements were
initially used to free up the courts from an increasingly heavy
docket and to allow quicker resolution of the dispute. However, the
use of arbitration has expanded from simply involving disputes be-
tween commercial parties to issues between consumers and busi-
nesses, employees and employers, shareholders and corporations.
   As arbitration has increased in popularity, what was once a
choice has become a mandatory more or less adhesion part of a con-
sumer contract. In effect, according to the 2004 survey, one-third
of all major consumer transactions are covered by mandatory arbi-
tration clauses; and despite all the benefits of arbitration, manda-
tory arbitration agreements may not always be in the best interest
of the consumer.
   This hearing will provide Members of the Subcommittee the op-
portunity to hear testimony about the credit card industry’s use of
arbitration to resolve disputes with cardholders. We will hear from
some witnesses who will speak in favor and some who will speak
against.
   We will also hear testimony about studies which analyzed arbi-
tration decisions concerning credit card disputes and how those de-
cisions impact the credit cardholder; and Members will consider
whether the inclusion of arbitration clauses is beneficial to the
credit cardholders or do these clauses simply place an additional
burden on the cardholders, many of whom are barely keeping up
mortgage or rent payments, insurance premiums, and credit card
bills.
   So today’s testimony and hearing is quite relevant to the distress
that many in America are experiencing. Accordingly, I look forward
to hearing today’s testimony.
   I now recognize my colleague from Arizona, Mr. Franks, the dis-
tinguished Ranking Member of the Subcommittee, for his opening
remarks.
   Mr. FRANKS. Well, thank you, Mr. Chairman; and thank you for
calling the hearing.
   Arbitration is indeed an important topic. We examined it more
than once in the 110th Congress, and I would confess that my
working conclusion from those hearings is that the theory and evi-
dence both show that arbitration is working well for consumers and
that our overburdened court system needs the arbitration system
as a vital relief valve. And I therefore am of the view that if we
are going to even consider doing anything to reform the arbitration
system this term, including with regard to credit card arbitration,
we need to do more oversight and ask more questions about wheth-
er that is truly needed.
   The issue of credit cards and arbitration is a good example of our
need for more information. We last considered this specific issue in
June of 2007 during our initial hearing on mandatory binding arbi-
tration. At the end of our hearing, there were numerous important
open questions. We were able to consider only some of those that
might bear on whether reform on the system makes sense.
   The first set of questions was about what really is happening in
consumer cases that go to mandatory binding arbitration. Are con-
sumers doing well there compared to litigation? Do they receive a
fair process? Do they receive timely results? Do they face excessive
                                  3

costs? Are they satisfied with the process, with the system, and the
outcome? If there are shortcomings in these areas, are there things
we can do to improve mandatory arbitration, rather than to just
eliminate it?
   A second set of questions concerned voluntary arbitration. If we
restrict mandatory binding arbitration, will consumers and busi-
nesses be able to use it instead of litigation? Or, instead, will one
side or the other inevitably see that litigation gives it the upper
hand in such cases if a dispute arises, leading requests for vol-
untary arbitration to fall on deaf ears? And will the parties who
have had the advantage in litigation usually be the businesses
which typically have time and money on their side?
   Another important set of questions concerns that very alternative
to arbitration which is, of course, litigation, particularly class ac-
tion litigation. For example, can litigation possibly compete with
arbitration in its ability to deliver at least some reasonable justice
promptly? Will litigation attorneys even take the small-money,
small-fee cases that make up so much of the case load in arbitra-
tion? And, if they don’t, won’t that leave millions of working poor
Americans with no recourse to justice at all?
   More poignantly, with regard to class actions, does the history of
class actions in producing pro-plaintiff awards that are little more
than peanuts give us any confidence that class actions pave a bet-
ter path to justice than arbitration? And what does the class action
corruption review about the Milberg Weiss scandal tell us? This is
where, Mr. Chairman, where prominent class action lawyers were
convicted for essentially buying and selling fake evidence and wit-
nesses in class actions. Shouldn’t we investigate the corruption of
the class action system to the bottom before we hand another huge
portion of this country’s disputes over to the class action plaintiff’s
bar?
   I could go on, Mr. Chairman, but I suspect that you see the
point. There are many, many questions that we must ask, both
about arbitration and litigation, before we can reasonably entertain
proposals to expand the litigation system at the expense of the ar-
bitration system; and, of course, I am as always eager to hear more
information today. I expect that much of that will confirm our al-
ready strong reasons to believe that arbitration is often better for
consumers and certainly typically no worse than litigation.
   And I reserve the balance of my time, it says here, Mr. Chair-
man.
   Mr. COHEN. So reserved. I thank the gentleman for his state-
ment.
   I now recognize the distinguished Subcommittee Chairman from
the great State of Georgia, Mr. Hank Johnson, a distinguished
Member of the Subcommittee, for an opening statement.
   Mr. JOHNSON. Thank you, Mr. Chairman; and it is always a
pleasure to come back and learn so much from you. I have been
sitting at your knee for a long time and listening carefully, so——
   Mr. COHEN. You have 7 minutes.
   Mr. JOHNSON. All right. And I hope you will continue to allow me
to gain some experience, Mr. Chairman.
   Ladies and gentlemen, the Federal Arbitration Act, is the credit
card cndustry csing the act to slam shut the courthouse door for
                                  4

users? That’s our topic today. And, Mr. Chairman, forced arbitra-
tion has been a concern of mine for some time; and I firmly believe
that Congress must act in this instance to protect consumers.
   Credit card users are certainly subject to forced arbitration as
employees, cell phone users, and franchisees. My legislation, H.R.
1020, the ‘‘Arbitration Fairness Act of 2009,’’ seeks to correct this
unfair practice where consumers are forced to sign pre-dispute
mandatory arbitration clauses. In the last Congress, we had 103 co-
sponsors of the bill. This time we have got almost 60.
   One of our indelible rights is the right to a jury trial. Guaranteed
by the United States Constitution, this right has been gradually
eroded through forced arbitration agreements. Just by taking a job
or buying a product or service, individuals are required to give up
their right to go to court if they believe that they are harmed by
the company. According to a recent study, roughly three-quarters
of Americans incorrectly believe they could sue an employer or
company should they be harmed or have a major dispute that
arises, even when they are bound by forced arbitration.
   Businesses defend these forced arbitration agreements by argu-
ing that it is cheaper, more informal, and results—an expedited
process is the result. But these agreements leave consumers, em-
ployees, and small businesses at a distinct disadvantage.
   However, the Arbitration Fairness Act does not forbid arbitration
clauses. It merely prevents forced pre-dispute arbitration clauses.
Consumers may still opt to arbitrate a dispute with a company but
only when that consumer determines that it is the appropriate
forum at the time the conflict arises and certainly not before.
   Forced arbitration appears fair on its face. What could be wrong
with being judged by a neutral arbitrator picked by both sides?
That’s only half the story, though, ladies and gentlemen. Arbitra-
tors tend to favor what we call ‘‘repeat players.’’ These are the peo-
ple who impose the pre-dispute mandatory arbitration on con-
sumers; and so it is not the consumers that refer the business to
these arbitrators, it is the businesses. And so they tend to be pre-
disposed, of course, to serve the one that pays them. And that’s
only human nature.
   Arbitration is also expensive, and individuals still must pay exor-
bitant legal fees for the ability to go into an arbitration process
which is stacked against them. These arbitration proceedings may
be called 4-, 5,000 miles away from where you live or where the
dispute arose. You have got to pay for travel expenses, going out
there, hotel expenses.
   Arbitration can also be difficult for individuals to navigate. So,
oftentimes, you do need an attorney. And, by the way, the cor-
porate attorneys get paid by the hour; and so I think we should
have tort reform with respect to the hourly fees that are charged
by these lawyers for commercial interests. And I certainly have no
problem with lawyers. I am a lawyer myself; and some of my best
friends are lawyers—and lawyers on both sides, by the way, de-
fense and plaintiffs.
   Importantly—I guess most importantly, Americans are not even
aware that they are signing these clauses because they are written
in ‘‘legalese’’ and buried in fine print.
                                   5

   Mr. Chairman, once again, thank you for holding this hearing;
and I will yield back
   Mr. COHEN. Thank you, Mr. Johnson.
   Is there somebody on this side that would like to make an open-
ing statement?
   I recognize the distinguished gentleman from the Alamo, San An-
tonio, the Ranking Member of the full Committee, Mr. Lamar
Smith.
   Mr. SMITH. Thank you, Mr. Chairman.
   Let me confess at the outset to having a little bit of a vested in-
terest in the subject today. Long ago and far away, when I was a
County Commissioner in San Antonio, Texas, the City of the
Alamo, I started the Bexar County Mediation Center, and it has
grown and prospered and is considered a real success. So I do be-
lieve in that concept to a great extent.
   Mr. Chairman, arbitration is vital to this Nation’s dispute resolu-
tion system. Consistent with fundamental American values, it is
fair, low-cost, and easily accessible. It is a beneficial addition to our
civil courts which are overburdened, understaffed, and clogged with
abusive lawsuits. Further, unlike litigation, it tends to avoid, rath-
er than hasten the destruction of commercial relationships.
   Advocates of more litigation, particularly the plaintiff’s class ac-
tion bar, have long sought to eliminate arbitration. Theirs is large-
ly an effort to stamp out the competition that arbitration poses to
litigation attorneys.
   Today’s hearing might also be called a Hearing on Efforts to Void
the Federal Arbitration Act: Are Trial Lawyers Trying to Stifle
Competition? I hope that is not the case. But bills are pending in
Congress to wipe out large areas of arbitration. They are backed
by the plaintiff’s trial bar; and they are contrary to the clear and
growing evidence that consumer arbitration works, is fair, and
should be preserved.
   Not only that, there is growing evidence that arbitration works
better than litigation. One of the witnesses at today’s hearing, for
example, has just released an important, nonpartisan, peer-re-
viewed study on consumer arbitration. That study, Consumer Arbi-
tration Before the American Arbitration Association, confirms that
arbitration works and works fast for the consumer. It produces mu-
tual settlements or voluntary dismissals in a large share of cases.
Consumers win relief in most cases they file. There is no proof that
companies are favored over consumers.
   Arbitration provides a predictable and low-cost alternative to liti-
gation, particularly a class action litigation with its runaway jury
awards. That, in turn, lowers the costs of goods and services; and
in this economy, what consumers need are lower cost goods and
services, not class action lawyers.
   In the credit card sector, lower cost goods and services means
more accessible consumer credit at lower interest rates. We should
do everything we can to preserve what makes credit cheaper and
more valuable in today’s economy.
   President Obama, less than 2 weeks ago, highlighted the urgent
need to make more consumer credit available. He also urged credit
card companies to make their contract terms more understandable
and more transparent, and he expressed support for curbing some
                                   6

credit card practices alleged to be abusive. But he did not identify
credit card arbitration as an abusive practice, nor did he make any
suggestion that we should prohibit it.
   The preservation of arbitration is consistent with sound economic
principles and traditional American values of freedom of contract
and self-reliance. If we act contrary to these principles and values,
who will benefit? Consumers will not benefit. They will lose access
to both a fair means of dispute resolution and cheaper credit. The
court system will not benefit. It will be overloaded with cases that
arbitrators can resolve more rapidly and less expensively. Tax-
payers will not benefit. They will have to shoulder the burden of
the court systems’ increased demand for resources.
   Not even plaintiffs in the new and unnecessary litigation that
trial lawyers seek will benefit in the end. It will take longer for
them to recover remedies. Their relationships with good companies
too often will be sacrificed, and the class actions that anti-arbitra-
tion interests promote too often pay pittances in damages or noth-
ing at all.
   So who will benefit? Mainly, it will be class action plaintiffs’ law-
yers who squeeze millions of dollars in fees from their clients’
cases.
   Let’s not let today’s hearing mark the day we begin to throw an-
other log on that fire of citizen outrage by sacrificing our arbitra-
tion system to the special interest of trial lawyers.
   Mr. Chairman, you have been very gracious with the time, and
I yield back.
   Mr. COHEN. Thank you, Mr. Smith. I appreciate your statement.
   Now I would like to recognize a distinguished first-year Member
from the State of New York, unlike Mr. Johnson, not a lawyer but
a holder of a credit card, Mr. Maffei.
   Mr. MAFFEI. Thank you, Mr. Chairman.
   Though I must point out to you I cut up my credit card on the
floor of the House last week, so—actually, I do have two. My wife
wants me to cut up the other one as well.
   I commend you for holding this hearing, and I do want to thank
the witnesses for being here today. And I want to be clear that I
do not oppose the concept of arbitration.
   Indeed, Mr. Smith just brought up a very good point. When used
appropriately, arbitration can be an extremely useful and effective
tool as it offers an ability to settle cases much quicker at a lower
cost. However, we do not currently have a level playing field right
now; and we must be here and do this kind of hearing to address
some of these problems.
   The credit card industry, in my view, is one example where busi-
nesses have understood the benefits of arbitration and have nearly
uniformly included binding arbitration agreements and their con-
tracts. Unfortunately, many have gone beyond the congressional in-
tent of the Federal Arbitration Act and abused the system, effec-
tively tilting the scales of justice unfairly in their favor.
   As an example, I would like to tell the story of Anastasia
Kamarova, a constituent of mine who was wrongfully hurt by
forced arbitration. In February of 2005, she started getting phone
calls from debt collectors about a delinquent credit card balance.
But what is strange is that she did not even have a card with that
                                  7

company. In fact, when the card was issued, she hadn’t owned any
credit cards at all. It turned out that the credit card company had
the wrong Anastasia, who spelled her name a little differently.
   The debt collector continued to pursue the issue, and she was
asked to appear before a private arbitrator in Minnesota. Anastasia
tried to convince the debt collector that they were targeting the
wrong person, but they did not seem to care, and a judgment of
over $11,000 was made in favor of the company in this case. This
judgment immediately became enforceable in court, even without
Anastasia having a chance to defend herself.
   Under the Federal Arbitration Act, a court would not be able to
reexamine the decision, even though it was clear that she was a
victim of mistaken identity or perhaps even identity theft.
   So this hearing comes on the heels of the Credit Cardholder’s Bill
of Rights. For far too long, the scales have been tilted in the direc-
tion of the companies. This, in my opinion, is in large part due to
the ridiculously broad contracts that virtually all credit card
issuers issue that include these arbitration clauses. Indeed, very
few of us can say we understand our credit card agreements; and
those of us that can say usually understand that they give almost
all of the power to the issuers.
   I do believe that it is appropriate to have a lawyer when you are
buying a house, when you are purchasing a house. But none of us
who are not lawyers should need a lawyer there just to get a credit
card.
   Arbitration was intended to improve access to justice, and we
should work to keep it that way and not make it yet another tool
to collect money from consumers like Mrs. Kamarova.
   I look forward to the testimony from our panel and I thank the
Chairman for holding this important hearing, and I yield back the
balance of my time.
   Mr. COHEN. Thank you. Appreciate your statement.
   Without objection, the rules of the Subcommittee are in place
that all Members who make opening statements have to stay for
the entire hearing.
   Without objection, that is done.
   I now recognize Mr. Coble for an opening statement.
   Mr. COBLE. Thank you, Mr. Chairman. I will be very brief.
Thank you for calling this hearing.
   Mr. Chairman and colleagues, one criticism that has been
brought to my attention alleges that arbitrations are biased; and
I would like to hear from the witnesses if they aware of any study
or empirical data that would confirm or reject the notion that only
arbitrators favorable to the credit card industry oversee these cases
on the one hand or, conversely, whether arbitrators favorable to
credit cardholders or consumers oversee these cases.
   And with that, Mr. Chairman, I yield back the balance of my
time.
   Mr. COHEN. Thank you, Mr. Coble.
   Is there anybody else on the Democratic side who would like to
make an opening statement?
   If not, anybody on the—Mr. Issa is recognized.
   Mr. ISSA. Thank you, Mr. Chairman.
                                  8

   And I, too, am both not a lawyer and have a credit card. But un-
like some people, perhaps, I have also been on both sides of arbitra-
tion. Arbitration has gotten it right, and then also I have lost. We
will consider those, when arbitration got it wrong. But I am an ad-
vocate for arbitration.
   But more importantly here today, I hope to hear from the wit-
nesses how, in fact, we on the dais seem to have the hubris and
those in the White House seem to have the hubris to believe that
we can overturn 200 years of contract precedent, that, in fact, what
we are talking about here today is depriving an arm’s-length rela-
tionship between somebody who will extend money to someone with
virtually no collateral or no collateral, in most cases, in return for
simply a promise that they will pay it back under the terms that
they’re offered.
   In addition to being a credit cardholder, I am the former CEO
of a company that expanded our sales by huge amounts based on
the reliance on credit card companies. Many of my customers, al-
though all businesses, used their credit cards to extend their credit,
sometimes as much as $100,000 in credit cards that they would run
up in purchases of my company’s products.
   I signed a contract. I didn’t like the contract because the contract
left the credit cardholder in a position where they could dispute a
bill and I would be immediately debited back. Ultimately, we had
a system of arbitration if we felt that was unjust, but in fact that
was part of the deal. We accepted that because it expanded our
business, and we did so voluntarily and entered into the many con-
tracts. My companies that bought my products entered into their
contracts.
   What we are talking about here today is preempting the ability
for companies to offer a contract and individuals to choose that con-
tract. We do so at our peril.
   Just as I believe the preemption of bankruptcy in the Chrysler
case and a great many other things today cause people around the
world to question whether we are, in fact, a constitutional republic
where the rule of law is predictable or whether or not we will sim-
ply, from time to time, for convenience, intervene with contracts
longstanding.
   With that, I yield back.
   Mr. COHEN. Thank you, Mr. Issa.
   If there are no other Members seeking to make an opening state-
ment, they may submit a statement to be entered into the record.
   I am now pleased to introduce the witnesses and hear their testi-
mony for today’s hearing. Thank you all for participating in today’s
hearing. Without objection, your written statement will be placed
in the record; and we ask that you limit your oral remarks to 5
minutes.
   You will note we have a lighting system here. Red is the end, yel-
low you have got a minute to go, and green you’re on your phone
for 4 minutes.
   After each witness has presented his or her testimony, Sub-
committee Members will be permitted to ask questions, also subject
to that 5-minute limitation.
   Our first witness is Michael Donovan. Mr. Donovan is a founding
member of the law firm Donovan Searles. Following graduation
                                 9

from Vermont Law School, Mr. Donovan was a trial attorney with
the SEC in Washington, prosecuted numerous securities cases and
enforcement matters, including injunctive and disciplinary actions
against public companies, broker dealers, and accounting firms. He
has co-authored many publications, including Preserving Judicial
Recourse for Consumers: How to Combat Overreaching Arbitration
Clauses.
   Mr. Donovan has appeared as a faculty member and speaker at
the ABA’s Class Action Forum, the Consumer Credit Regulation
Forum of the New Jersey Bar, National Consumer Rights Litiga-
tion Conference sponsored by the National Consumer Law Center,
is a member of the ABA and the Chair of the Consumer Law Sub-
committee of the ABA Litigation Section’s Class action and Deriva-
tive Suit Subcommittee. He is also the former Vice Chair of the Na-
tional Association of Consumer Advocates and an active member of
the Trial Lawyers for Public Justice.
   And I guess all that makes you a plaintiffs’ class action lawyer.
Thank you, Mr. Donovan. You may begin your testimony.
   You need to press a button, I guess. Is that the button? You need
to turn on the clock.
        TESTIMONY OF MICHAEL D. DONOVAN, ESQ.,
     NATIONAL ASSOCIATION OF CONSUMER ADVOCATES
   Mr. DONOVAN. Let me start by answering directly the question
presented by the title for this Subcommittee hearing. Yes, the cred-
it card industry is using forced arbitration and the Federal Arbitra-
tion Act to quash legal claims by ordinary consumers that are in
each of your districts.
   Congress must pass the Arbitration Fairness Act sponsored by
Congressman Johnson in order to stop the misuse of Federal law
to deny the due process rights of my clients and every one of the
American citizens represented by this panel.
   In 2007, I appeared before the Senate Banking Committee to dis-
cuss the problems with the credit card industry. I described the
many abuses imposed upon my clients and your constituents by the
unfair practices of the credit card industry.
   Let me point out, Congressman Issa, that the one difference be-
tween the credit card contract and 200 years of contract law in this
country is that the credit card contract, unlike any other common
law contract with which we are familiar, includes a unilateral
change in terms provision that allows the stronger party, the party
with more power, to unilaterally change the terms of that contract
at any time, for any reason, to impose any penalty, charge, fee or
term that it wants; and the credit card companies have used this
abusive change in terms provision over and over and over again.
   No other contract in American history has ever included that
type of unilateral change in term provision without notice. And the
card companies are using those provisions today to impose unfair
penalty rates, trip-wire pricing, tricks, traps, reverse promotional
offers, undermine promotional offers and, yes indeed, to impose un-
fair arbitration clauses in which they can sue and have sued my
clients in distant fora.
   In fact, most of the credit card industry now uses an arbitration
forum that is, in fact, biased. It is biased because we know from
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arbitrators who have worked for this forum that it is a biased
forum. The name of the forum is the National Arbitration Forum.
It is located in Minnesota; and it frequently conducts unfair, on-
the-paper arbitrations in which it enters judgment unilaterally
against consumers, as Mr. Maffei’s constituent experienced. That
Forum unilaterally entered a mistaken arbitration award against
his constituent when, in fact, that constituent never even had a
contract allowing that Forum to perform arbitration.
   Now, is that a unique experience? Does that happen rarely, infre-
quently? It happens every day. The Web sites are littered with tens
of thousands, hundreds of thousands of complaints about credit
card practices, abuses, deceptive misconduct.
   Let me start with an example. One example is the notorious In
Re Providian Bank. Its credit card portfolio was purchased by
Washington Mutual. It is now owned in part by JPMorgan Chase.
   What did Providian Bank do? Well, Providian Bank was the tar-
get of a class action litigation. Yes, I was involved in the class ac-
tion litigation. Guess what the class action litigators found in liti-
gating this frivolous case? The reality of it is is what they found
was that Providian Bank had embedded in the bar codes of its re-
turn payment information, those bar codes on the bottom that you
send your check in with, intentionally embedded the wrong zip
code in order to ensure that the payments cardholders sent in
would be late so that Providian could increase its late fee revenues.
That is what the class action lawyers found.
   And Providian Bank, the reason why they did that was because
Providian had already sold off its rights to the interest that people
would pay on those credit card receivables. But for the late fees,
Providian got to keep those as revenues and could report them to
their shareholders as higher revenues.
   So this is what the class action lawyers found, was that this con-
scious deceit, fraud, deception, was performed by Providian on its
own cardholders. Why did it perform this? To increase its revenue,
inflate its stock price, and award higher bonuses to all these Wall
Street titans. That is what Providian did.
   What happened in the Providian case? Well, the class action was
settled for $105 million. Yes. On a per member basis, is that a lot
of money? Do people only get back $30? Sure they only get back
$30 because that is how much they were overcharged. That was the
late fee.
   They also had to pay penalties because the OCC, their regulator,
came in late. The OCC has been an abomination. They do not regu-
late banks. They are owned by the banks. In fact, the banks pay
almost all of their budget. In fact, people choose——
   I am over my time. I am sorry.
   Mr. COHEN. Mr. Donovan, somehow or another, you didn’t get to
go to yellow. So what we will do is split the difference and give you
30 seconds.
   Mr. DONOVAN. Very good, and I apologize. Congressman, it is my
temptation as a trial lawyer to call just about everybody Your
Honor. So if you will permit me that informality——
   Mr. COHEN. You are down to 17 seconds.
   Mr. DONOVAN. In any case, the fact of the matter is, in the ab-
sence of class actions for these small value claims in which con-
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sumers cannot ever gain access to court, you will have tens of thou-
sands of credit card companies continuing to engage in massively
abusive practices which everyone in the United States knows is on-
going and will continue to be ongoing, particularly with arbitration.
  Thank you.
  Mr. COHEN. Thank you, Mr. Donovan. I appreciate your testi-
mony and your appellation.
  [The prepared statement of Mr. Donovan follows:]
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                               98




   Mr. COHEN. Our second witness is Richard Frankel. Professor
Frankel teaches at Drexel University School of Law; and his chief
scholarly interests include consumer, administrative, and immigra-
tion law. He served as a teaching fellow and supervising attorney
for the Georgetown University Law Center’s Appellate Litigation
Program. While there, he supervised students litigating before the
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U.S. Court of Appeals for the D.C. Circuit, the Fourth and Ninth
Circuits, as well as the Board of Immigration Appeals.
   Professor Frankel’s clinical interests include consumer law, ap-
pellate advocacy, landlord-tenant law, immigration law, public ben-
efit civil rights and prisoners’ rights. Previously, he was a Gold-
berg-Dietzler Fellow for Trial Lawyers for Public Justice in Wash-
ington, where he litigated class action consumer protection and
civil rights cases.
   Thank you, Professor Frankel. Will you begin your testimony.

        TESTIMONY OF RICHARD H. FRANKEL, ESQ.,
     DREXEL UNIVERSITY EARLE MACK SCHOOL OF LAW
   Mr. FRANKEL. Honorable Members of the Committee, thank you
for the opportunity to participate in this hearing.
   As several of the Members of the Committee mentioned, there
has been a lot of debate about empirical evidence, either for or
against arbitration and about whether consumers fare better in ar-
bitration than they do in court. But what I would like to focus on
today are problems that exist—with arbitration that exist, the pub-
lic consequences of giving up your right to a jury trial, problems
that exist irrespective of the specific outcomes for the private par-
ties in the process.
   And, specifically, the closed nature of the arbitration process rel-
ative to court and the expansive reach of Federal preemption that
prevent States from regulating arbitration clauses and the way
that they are permitted to regulate any other contract mean that
no matter who benefits from arbitration, the public, and society at
large, will suffer.
   In particular, arbitration prevents the law as a whole from devel-
oping, growing, and adequately keeping up with changing cir-
cumstances; and this is a particular problem in the credit card sec-
tor precisely because arbitration clauses are so universally used in
that area. That essentially allows an entire area of consumer pro-
tection law to be removed from public scrutiny by the use of adhe-
sion contracts’ take-it-or-leave-it arbitration clauses.
   Arbitration hearings, unlike judicial hearings, are private mat-
ters. Arbitrators have no obligation to provide a written decision
explaining how they reached their decision or to provide reasons
justifying that decision. In fact, arbitrators have an incentive to
write as little as possible in order to insulate their decisions from
being overturned by courts.
   Arbitrator decisions do not create precedent. They’re not binding
on anyone, including the arbitrator, who is free to disregard his or
her own earlier decisions in later cases. And some arbitration pro-
viders even require the parties to keep proceedings confidential.
This prevents the law from taking shape in the way that it nor-
mally does.
   Judicial opinions, public, written, well-reasoned decisions play a
crucial role in adapting the law to changing circumstances. They
give notice to parties. They explain the meaning of the law to the
public. They make the legal system transparent to the public at
large, and they promote deterrence by informing individuals of
their rights and responsibilities under the law. Without written de-
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cisions that create this kind of precedent, the law stagnates and
stays in a position essentially of suspended animation.
   And this is true both not just for private law but for public law
as well. Even statutes, important public statutes like Title VII, our
Civil Rights Act, the Truth in Lending Act, all of these are essen-
tially removed from an ability for courts to give precedent decisions
explaining what those laws mean when they are removed and put
in a system of private arbitration.
   The Honorable Congressman Franks called for a need for more
information, and I wholeheartedly agree. And I think one of the
problems with arbitration is that it is so private that we don’t get
the kind of information that we need in order to make informed de-
cisions, in order to know that our justice system is working, in
order to inspire public confidence in the way things work. Many ar-
bitration providers, the ones who hold data, won’t even release the
data that they have unless they are required to by State law.
   Now, I think in all of these potential problems with arbitration
are exacerbated by a lack of meaningful opportunity for review of
arbitrator decisions. Closed proceedings might be a little less prob-
lematic if the public had confidence that they could be reviewed for
error. But the Federal Arbitration Act prohibits that from taking
place.
   Review of arbitration decisions has been called by courts as one
of the narrow forms of judicial review that exists; and courts have
said even when arbitrators findings are wacky or silly, or based on
evidence outside the record, or based on gross errors of law, those
findings will not be overturned.
   Given all of these things, how or why the public should have any
confidence in a system that is closed from public view, that in-
volves decisionmakers who don’t have to explain how they reach a
decision, and that makes those decisions immune from review is
beyond me. Public confidence in any judicial system, arbitral or
public system, is important in making it legitimate; and there is no
reason for the public to have any confidence in the system.
   Now, the last significant problem with arbitration that I would
like to address is the inability of States to take action to try and
protect their citizens from the abuses of arbitration. Congressman
Issa talked about the hubris of why should Congress act to over
turn 200 years of contract law. But the hubris really is the current
preemptive reach of the Federal Arbitration Act which precludes
State legislatures from democratically enacting legislation that pro-
tects their citizens from the worst abuses of arbitration clauses. All
of those are preempted by the Federal Arbitration Act.
   Thank you.
   Mr. COHEN. Thank you, Professor.
   [The prepared statement of Mr. Frankel follows:]
                 101
PREPARED STATEMENT   OF   RICHARD H. FRANKEL
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                              120




  Mr. COHEN. Our third witness is Christopher Drahozal. Professor
Drahozal teaches at the University of Kansas, which Memphis gave
a national championship to 2 years ago, and is an internationally
known scholar whose writing focuses on the law and economics of
dispute resolution, particularly arbitration. He is the author of
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multiple books and numerous articles on commercial arbitration
and has taught and given presentations on the subject in Europe
and the USA, serving as associate reporter for the ALI’s restate-
ment of the U.S. law of international commercial arbitration.
  Prior to coming to Kansas, the professor practiced law with
Sidley and Austin in D.C. and served as a law clerk for Justice
Byron R. White of the United States Supreme Court and Judge
George H. Aldrich of the Iran-United States Claims Tribunal in
The Hague, the Netherlands.
  Thank you, Professor Drahozal. Will you please proceed with
your testimony.

      TESTIMONY OF CHRISTOPHER R. DRAHOZAL, ESQ.,
          UNIVERSITY OF KANSAS SCHOOL OF LAW
   Mr. DRAHOZAL. Thank you.
   Chairman Cohen, Ranking Member Franks, Members of the Sub-
committee, I really appreciate the opportunity to be here today. I
did not wear my Jayhawk tie in deference.
   I have been very pleased with the discussion so far with sort of
interest in empirical work. Because, from my perspective, I think
sound empirical evidence is really essential for making good public
policy. In the arbitration area, actually, one commentator recently
found ‘‘a consensus that the future of arbitration should be decided
by data, not anecdote.’’
   The Searle study, which I am the Chair of the Consumer Arbitra-
tion Task Force of the Searle Civil Justice Institute, is the most re-
cent and, frankly, the most comprehensive look at consumer arbi-
tration as here administered by the American Arbitration Associa-
tion. A few sort of background points on the Searle study.
   First of all, there is absolutely no industry funding whatsoever
for the study. It was funded exclusively by the initial grant of
money to set up the Searle Center to Northwestern Law School by
the late Daniel Searle, a Northwestern trustee. I would frankly
have made a condition of my participation in the study that they
not use industry money, and that was never an issue because that
was never the plan. So no industry funding whatsoever for the
study.
   Searle Civil Justice Institute follows a rigorous research protocol
governing how we do our work. The report itself, as was mentioned
previously, was peer reviewed by an array of scholars on arbitra-
tion law and empirical work on arbitration law and, frankly, from
across the ideological perspective, from supporters and critics of
consumer arbitration.
   We are very comfortable with the methodology of the study. Ob-
viously, our results focusing on the American Arbitration Associa-
tion are limited to the AAA, as we made clear in the report. None-
theless, in deciding national policy on arbitration, it seems to me
that what is done by the oldest and most prominent arbitration as-
sociation in the country certainly is relevant to that debate.
   Our study did not focus exclusively on credit card disputes but
certainly includes a significant number of credit card disputes and,
more broadly, debt collection disputes in our sample.
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   A couple of highlights from the study, and there is a lengthy
study, plenty to say, but I will just make a couple of points at this
stage.
   First, the vast majority of the arbitrations in that study arose
out of pre-dispute clauses, over 96 percent. Only a handful of cases
arose out of post-dispute clauses. That result is actually consistent
with every other study that I have seen looking at employment ar-
bitration.
   And, interestingly, international arbitration is the same way.
The vast majority of disputes arise out of pre-dispute clauses.
   The standard advice in drafting—and the reason I mention inter-
national arbitration is there is no question there that you have so-
phisticated parties on both sides, no concerns about the fairness of
the process; and yet, even in that setting, if you don’t have a pre-
dispute clause, you don’t end up with arbitration.
   The implications of sort of the finding in a consumer setting and
in the international setting to me are, first, that if you get rid of
pre-dispute clauses, it is essentially going to get rid of consumer ar-
bitration; and, second, the reason is not because of some unfairness
in the consumer arbitration process, because that rationale
wouldn’t apply in the international arbitration process. The reason
is because, once a dispute arises, parties’ interests and perspectives
change; and once you have a dispute, somebody’s going to benefit
from going to court, somebody’s not. And at that point they can’t
reach an agreement. No reflection on the unfairness of the arbitra-
tion process, but allowing a pre-dispute clause enables parties to
enter into agreements that make them both better off they other-
wise couldn’t enter into.
   Second highlight and my final minute of my opening statement
is we have a variety of findings in the Searle report. One that peo-
ple have tended to be interested in is how the cases come out.
What we found is that consumers win some relief in roughly 53
percent of the cases in which they bring claims, and they are
awarded just under $20,000 on average. Businesses win some relief
in roughly 83 percent of the cases they bring and are awarded just
over $20,000.
   The fact that businesses prevail more often does not show that
there is any unfairness in the arbitration process. To the contrary,
what is likely the case is that businesses bring different claims
than consumers bring.
   The business claimants were very different parties than the busi-
ness respondents. Business claimants tend to be people who pro-
vided or businesses that have provided services and are now col-
lecting debts. Consumer claimants tend to bring claims against
businesses that have allegedly provided a defective product in some
way, shape, or form. They are harder to prove, and they are harder
to quantify damages.
   What that means is you can’t just look at outcome numbers to
tell whether arbitration is fair or not. So the Public Citizen studies,
which are very interesting, you can’t evaluate whether a 94 percent
win rate shows arbitration is fair or unfair without something to
compare it to; i.e., how comparable cases come out in court.
   Thank you very much.
   Mr. COHEN. Thank you, Professor Drahozal. Appreciate it.
                                123

[The prepared statement of Mr. Drahozal follows:]
          PREPARED STATEMENT   OF   CHRISTOPHER R. DRAHOZAL
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                               138




  Mr. COHEN. Our final witness is David Arkush. Mr. Arkush is
the Director of Congress Watch. He joined Public Citizen in Janu-
ary, 2008, after working as a staff attorney for Public Justice,
where he litigated civil rights, environmental, and consumer cases
primarily in the area of Federal preemption of State law, private
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standing under consumer protection statutes, and binding manda-
tory arbitration in consumer contracts.
   Prior to working at Public Justice, Mr. Arkush taught at the Ap-
pellate Litigation Program at Georgetown University Law, served
as the Fuchsberg Fellow at Public Citizen Litigation Group, and
clerked for the Honorable R. Lanier Anderson, III of the U.S. Court
of Appeals Eighth Circuit.
   Before clerking, Mr. Arkush worked for the private public inter-
est firm Adkins, Kelston and Chavez; and before law school he
served as Statewide coordinator of Missouri Voters for Fair Elec-
tions.
   Thank you, Mr. Arkush. Will you proceed with your testimony.
    TESTIMONY OF DAVID ARKUSH, ESQ., PUBLIC CITIZEN
   Mr. ARKUSH. Thank you, Mr. Chairman, Members of the Sub-
committee.
   Forced arbitration in the credit card industry serves three pri-
mary functions. First, it allows credit card companies and debt col-
lectors to wring more unfair fees out consumers, sometimes the
consumers who are least able to pay them. Second, it makes it easi-
er for debt collectors to collect on debts when they lack suffi-
cient——
   Mr. COHEN. You might want to pull your microphone up a little
bit. Thank you, sir.
   Mr. ARKUSH. Second, it enables debt collectors to collect on debts
when they lack sufficient evidence or even when the debts are un-
lawful. And, third, it provides a shield from accountability for un-
fair practices.
   Arbitration, forced arbitration in the consumer context has noth-
ing to do with providing consumers a faster, cheaper, and fair
forum to bring disputes.
   On the first two points, unfair fees and collection, I have a story
to tell that illustrates those points.
   Cheryl Betts of North Carolina missed one payment. She was
late for one payment on her Chase credit card. In response, Chase
lowered her credit limit from $6,000 to $4,900, charged her extra
fees, charged her a penalty interest rate. Those fees and penalty
interest soon pushed her over the new credit limit. That spurred
a new cycle of fees and penalty interest. She tried to work out a
payment plan with Chase but wasn’t able to.
   Two years later, she received a letter in the mail saying that she
was being taken to arbitration. She owed over $6,000; and to her
debt had been added $602 in legal fees, over 10 percent of the debt.
She wrote an 11-page response, to which the debt collection law
firm responded by seeking an adjournment, which indefinitely sus-
pended the arbitration.
   Four months later, she wrote another long letter disputing the
debt, to which the debt collection firm responded by seeking a 45-
day extension. One day after the 45-day extension expired and the
debt collection firm still had not responded to Ms. Bett’s argu-
ments, the NAF arbitrator ruled in the debt collection firm’s favor.
   In sum, in an NAF arbitration, Ms. Betts was first charged extra
fees; second, the debt collection firm never responded to her argu-
ments; third, the debt collection firm missed its own extended
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deadline to respond to her arguments; and, fourth, the debt collec-
tion firm won. This is not a fair process. This is not a process that
has anything to do with providing consumers a benefit.
   The third point in terms of what arbitration currently does in the
credit card industry is that it is a shield from accountability for un-
fair practices. Because there are no class actions in credit card ar-
bitrations, that means consumers generally can’t bring any claims
at all. As Judge Posner famously said, only a lunatic or a fanatic
would bring a small claim individually in court. We need class ac-
tions if many of these people are to bring cases at all.
   The evidence bears out that it is too difficult for consumers to
bring cases individually in arbitration because when we at Public
Citizen studied 34,000 NAF arbitrations from 2003 to 2007, this is
34,000 arbitrations, only 118 of them were brought by consumers.
   Forced arbitration is about denying access to justice for con-
sumers. It is not about providing them a fair, efficient, and inex-
pensive forum.
   Proponents of arbitration try to show benefits. They have failed
to meet their burden of showing that arbitration benefits con-
sumers. We debunked the majority of these studies that have been
done last summer in a thorough report.
   There is new study from my colleague to my right here, Professor
Drahozal, again purporting to show that forced arbitration benefits
consumers. It suffers from similar flaws to all studies that have
preceded it.
   First, it is based on Triple A arbitrations. Triple A is not a major
provider of consumer arbitration. It is not the right place to look
if you want to find answers to these questions.
   Second, the study’s own data shows that consumers do worse
than businesses. Consumers won 53 percent of the time and got 52
percent of what they asked for. Businesses won 83 percent of the
time and got 93 percent of what they asked for. That means con-
sumers overall got 28 percent of what they wanted and businesses
got 78 percent of what they wanted. That doesn’t look fair at a
glance.
   The study is also missing key data largely because of timing. We
have done a preliminary analysis of cases that they missed. Of
61,000 cases since 2004, 45,000 come from a single debt collection
firm, Midland Credit Management, that came in after this study’s
data set concluded. In 87 percent of those cases, Triple A awarded
exactly amount that Midland Credit Management sought.
   The fourth problem is that there is no independent verification
of these kinds of numbers that are in the study. The proponents
of arbitration have all of the evidence in their hands, and they are
afraid to give it up. Instead, we are forced to fight with table scraps
of evidence, and we are still winning the fight on this side.
   This empirical debate, with all due respect, is a bit of a distrac-
tion. Common sense says that a system where the arbitrators are
competing for the business of one side is not fair to the other.
   Mr. COHEN. Thank you, Mr. Arkush.
   [The prepared statement of Mr. Arkush follows:]
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   Mr. COHEN. We will now begin the questioning, and I will begin
by recognizing myself for 5 minutes.
   Mr. Donovan, in your prepared statement for this hearing you
offer several recommendations for Congress to consider to protect
credit cardholders. One of these is no mandatory arbitration either
for consumer claims or for collection against consumers. Why do
you suggest that and how has the credit card industry used manda-
tory arbitration which would lead you to this recommendation?
   Mr. DONOVAN. Thank you for your question, Mr. Chairman.
   Three reasons I suggest that. First, this Congress has wisely
looked at the exact same question with regard to credit extended
to our service members. This Congress has wisely determined that
for credit extended to our service members you should outlaw arbi-
tration because the process, as portrayed and exercised with regard
to service member credit, is unfair and it is unwise to force service
members to go through biased arbitration.
   This Congress has also looked at the exact same question when
it came to car dealers dealing with car manufacturers, franchisees
dealing with franchisors. This Congress has looked and said, look,
a car dealer is a smaller operation. It is usually a mom and pop,
a small business operation, and it cannot defend itself or fight off
mammoth car manufacturers who dictate what the terms of the
franchise agreement is going to be. So this Congress wisely, I be-
lieve, Republicans and Democrats alike, have determined that you
should outlaw arbitration between car dealers and car manufactur-
ers.
   What are the bases of those two decisions? The bases of those
two decisions is that this Congress determined that arbitration is
unfair when you use—when the stronger party has an unfair ad-
vantage over the weaker party.
   The second point, arbitration is doubly unfair when you are talk-
ing about small claims. The claims involving credit cards are ordi-
narily claims relating to payment processing practices, late fees,
over limit fees, or a misapplication of payments for an unfair
change in terms.
   Those are generally small cases, generally not in excess of a cou-
ple of hundred dollars at most. Almost no consumer can find a law-
yer or has any wherewithal or ability to map themselves through
an unfamiliar arbitration process. So what you need is you need a
system in which you have lawyers and advocates who are able to
weed through the good from the bad cases and bring the good cases
and not pursue the bad cases, and what happens is the class action
does that.
   Third reason, merchants are also subjected to arbitration clauses.
Mr. Issa pointed out that he was a business owner. The business
owners here have also been subjected to unfair arbitration clauses.
Merchants have agreements with all the credit card issuers.
   In fact, one of the biggest class action plaintiffs in the bigger
credit card class actions in the United States was Wal-Mart stores.
It was a representative plaintiff in a class action. It brought that
class action and settled it for $3 billion. That is a major manufac-
turer that will now be exposed to unfair arbitration terms foisted
upon it by the credit card industry because it is going to be forced
to pay unfair merchant fees that can change at any time.
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   So not only do ordinary consumers need the Arbitration Fairness
Act to be enacted, but also every entrepreneurial decent business
in the United States needs the Arbitration Fairness Act to be
adopted and changed.
   Thank you.
   Mr. COHEN. Thank you, sir.
   Professor Frankel, are there alternatives to mandatory binding
arbitration less than the bill that are under consideration that you
think might be offered that would be fair to consumers and busi-
nesses both?
   Mr. FRANKEL. One alternative that I think is a good alternative
is the one proposed in the Arbitration Fairness Act which would
make post-dispute, voluntarily agreed to arbitration where both
parties, after the dispute, decide they want to arbitrate. That is one
alternative. That creates an opportunity for greater fairness, for
not having specific terms foisted upon it. That really is a voluntary
agreement.
   And I think there is a big difference, as you can tell from I think
most companies’ own behavior, that they see a big difference be-
tween voluntary arbitration and forced arbitration. Most companies
that negotiate arm’s-length contracts with other companies don’t
put arbitration clauses into these contracts. Where they do use ar-
bitration clauses is in where they have a chance to do it unilater-
ally against consumers.
   Mr. COHEN. Thank you. My time has expired; and I now yield to
the Ranking Member, Mr. Franks, for questions.
   Mr. FRANKS. Well, thank you, Mr. Chairman.
   Professor Drahozal, the second phase of the study that you have
been working on will specifically examine the relative merits and
demerits of arbitration and class actions. That is kind of the bottom
line for the specific topic of today’s hearing. When do you expect
your study to be complete, and what specific questions will you re-
search?
   Mr. DRAHOZAL. Well, the important part of the second phase will
be looking at how our results compare to other comparable cases
in the court system. You can’t really evaluate whether something
is fair on its face simply by looking at what happens in arbitration.
So what you have to look at is how it, arbitration, compares to
other court cases.
   I was actually doing some preliminary reading on that question.
Which we have a while to go, unfortunately, before we will have
final resolution. But I came across a study that found that corpora-
tions won 90 percent of their claims against individuals, and indi-
viduals won 50 percent of their claims against corporations, which
looks a lot like our results from arbitration.
   What was interesting is that was a study of Federal court diver-
sity cases, which are large claims, not in arbitration. And you get
very similar results. Now, we will focus on sort of comparable
claims, which typically are smaller claims, but I sort of anticipate
finding similar sorts of things.
   Other aspects of what we will do in the second phase will be, as
you say, look at the extent to which class actions are potential sub-
stitutes or comparable cases for arbitration claims. Presumably
looking at the cases that, as Mr. Arkush pointed out, were after the
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time period that we were studying in the initial phase. I wish I
could promise a date by which that will be done. My dream date
is realistically the end of the year. I mean, this is sort of very in-
tense data collection and then writing. We will have to see.
   I had the benefit this year of being on sabbatical to do the first
phase. I will be back teaching next semester and will have com-
peting demands on my time. That is my hope.
   Mr. FRANKS. Well, thank you.
   I suppose, just from a common sense perspective, that doesn’t
surprise me a great deal, you know, that businesses, before they go
after one of their customers, they are going to probably want to
have a pretty strong case; and that they would win 90 percent of
those doesn’t surprise me at all. So what you say makes sense.
   I guess my concern is that if we put this where class actions are
the main—you know, the main mechanism for solving these things,
it is a little like the old statement that, you know, a lot of times
lawyers challenge two people to strip for a fight and then they steal
their clothes. And it is a difficult situation to deal with.
   So let me ask you, how do you answer Public Citizens’ criticism,
Mr. Arkush’s criticisms there of your study? How do you respond
to that?
   I want to give you an opportunity because he took your name in
vain in some pretty significant ways there.
   Mr. DRAHOZAL. Mostly, it was a sort of fair debate, I would say.
I do not feel slandered in any way, shape or form.
   The main response, again, is to some extent the one I just gave,
which is—well, first of all, it seems to me the AAA results—while
I agree that that is one provider out of several—are certainly rel-
evant to the debate. We cannot focus on just one provider, like the
National Arbitration Forum to the exclusion of others.
   What is interesting about the AAA consumer database or con-
sumer claims is, in our sample, there was a much higher propor-
tion of claims brought by consumers. So, if we really want to see
how consumers do when they bring claims, we really need to look
at not just the NAF, but also at the AAA, which is what we are
able to do.
   The second point is the second phase of the study, that to really
understand what our results mean from the first phase, we cannot
just look at the numbers and say 90 percent is bad, and that is all
we need to know; we need to have something to compare it to.
   Mr. FRANKS. Do you have any methodological or other flaws that
you would point out or opine resulted to Public Citizen study of the
credit card arbitration in California?
   Mr. DRAHOZAL. Well, there certainly are some disputes, and I
have not studied the NAF in the same way that I have studied the
American Arbitration Association, so I cannot sort of talk about
what exactly the practices are.
   Looking at the empirical results, there is a dispute about how
you treat settlements, for example. I mean settlements benefit the
consumer, so they should be seen as sort of a, quote/unquote, ‘‘win’’
for the consumer.
   My main comment on Public Citizen’s study is the interpretation
of the data, and again, it is the same point: Even if businesses win
90-plus percent of the time, that does not necessary mean the proc-
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ess is unfair. Again, this is part of what we are going to be doing
in the next phase of the study, but if you look at studies of small
claims courts, which involve business debt collection, it looks amaz-
ingly like the way the Public Citizen describes the NAF arbitration.
Businesses almost always win; the consumers almost never show
up. So this is not a problem with arbitration.
  Again, we may find out differently in the next phase, and so to
that extent, I reserve judgment; but from what I have seen so far,
the problem is not with arbitration. There may be issues with debt
collection—I mean, if consumers, in fact, owe the money, it is not
surprising they do not show up, for example. So I think a lot of this
has to do with the type of claim rather than the process that is in-
volved.
  Mr. FRANKS. Mr. Chairman, the light is red. Thank you.
  Mr. COHEN. Thank you, Mr. Franks.
  I now recognize the distinguished vice Chairman from the Bay
State and former prosecutor, Mr. Delahunt.
  Mr. DELAHUNT. Well, thank you, Mr. Chairman, for that rather
generous introduction.
  I just have one question, and I apologize for being tardy, but we
always hear how different approaches will save the consumer
money. For example, arbitration will lower the litigation cost, and
that is, as a result, a savings that is passed on to the consumer.
  Is there any data to support that, Mr. Arkush, or is that just
simply, you know, credit card industry-speak?
  Mr. ARKUSH. If it is not nothing more than credit card industry-
speak, it is barely more. I mean, we have seen no data to support
that claim, and in fact, there are plenty of data points that indicate
the opposite.
  During this same period of time when arbitration—when the
practice of forced arbitration proliferated throughout the credit
card industry, the industry was raising fees and raising penalty in-
terests, basically erecting all of the tricks and traps that that in-
dustry now uses. And the full House of Representatives just acted
to ban some of those practices this past week.
  Mr. DELAHUNT. Professor Frankel.
  Mr. FRANKEL. I agree. The only thing that I would add is that,
in some way, you could actually perceive it as raising costs on the
consumer because the consumer’s credit card, to some extent, is
less valuable. The more time that they have to spend monitoring
credit card companies because they do not have litigation as a
forum, the more care they have to take. So it reduces the value of
their card at the same time that credit card companies are charg-
ing the same price.
  Mr. DELAHUNT. Professor Drahozal.
  Mr. DRAHOZAL. I would love to be able to do that study. It is real-
ly difficult to do.
  The way that I think about this issue is: What would happen if
arbitration—if credit card companies could not use arbitration? My
prediction would be that prices would probably go up, that interest
rates would go up; and what that suggests to me is, by using arbi-
tration, implicitly the interest rates have gone down.
  Again, that is in just sort of a rough sense. I cannot cite empir-
ical studies.
                                 159

   Mr. DELAHUNT. Right. There is no data.
   I remember during the hearings that we had on the so-called
‘‘bankruptcy reform act’’ that we were told that an average family
would save somewhere in the neighborhood of $400 a year if we
passed that particular legislation.
   I have not seen that kind of savings, have you, Mr. Arkush?
   Mr. ARKUSH. No, we have seen nothing like it. In fact, we get
these types of claims repeatedly on not just bankruptcy issues, but
on any sort of so-called ‘‘reform’’ of the justice system. You fre-
quently see claims that costs will be passed on to consumers, and
they are never—as far as I can tell, they have never been borne
out by the evidence.
   In fact, what we can really expect is restoring a robust system
of accountability and liability for bad practices. That is what would
reduce costs for consumers.
   Mr. DELAHUNT. Mr. Donovan.
   Mr. DONOVAN. Congressman, let me build on that very point.
   We have to understand that the credit card industry, much like
the subprime lending industry, is structured based upon a
securitization product. Almost all of the credit card receivables are
securitized. To the extent that the investment community does not
have confidence in that securitized product because people are
using arbitration to hide their bad practices, that increases costs.
It increases expenses. It increases credit throughout the United
States.
   The industry right now has used arbitration falsely, in a lie, to
say costs will go down when, in fact, costs will go up directly be-
cause of arbitration, because it hides material information from in-
vestors as well as from consumers. And there is no doubt that it
hides material information; the whole idea of arbitration is to be
secret so that nobody else catches on to the fact that you are com-
mitting bad practices.
   Mr. DELAHUNT. I can remember this one statistic, and I think it
occurred maybe in the late 1980’s-early 1990’s, where the Federal
funds rate went down to about 3 percent, and yet the average in-
terest rate of a credit card was around 14 percent. It did not go
down. It never seems to go down. There never seems to be a sav-
ings for the consumer.
   Now, I can understand that, you know, there is a marketplace,
but when the marketplace is—really, the construct of the market-
place is, at best, an adhesion contract. And it does not just stop
there, because it is not just the individual consumer who is hurt.
What we saw with subprime lending was that an entire global
economy is put at risk. So, if we do not address these issues from
a public policy perspective, we put the free marketplace at risk.
   Does anyone want to comment on that?
   Mr. DONOVAN. I just want to second that. I think that is exactly
right.
   The reality of it is that the securitization product here is out
there, and it is trading now. To the extent that there are issuers
who are engaged in bad practices and those things are disclosed,
that securitization product then plummets. That requires banks to
increase their reserves, that requires investors to buy credit default
swaps, and that increases the direct costs that the banks—and we
                                 160

see this evidenced right now. Every one of the banks in the United
States is now increasing their fees on credit card consumers, and
they are doing that because they know that they have now been
caught and that they have to increase their reserves.
   So arbitration will permit them to continue that bad practice in
order—and then when it finally comes to the fore, the
securitizations will fall, and that will undermine another part of
the credit market that we already saw undermined with the
subprime lending market. So, to support the free market system,
one should outlaw arbitration.
   Mr. DELAHUNT. Mr. Chairman, I thank you for the time. And I
think that Mr. Donovan speaks with a sense of urgency, and I
would hope that Mr. Johnson’s bill might be considered for a mark-
up in this particular Subcommittee.
   With that, I yield back.
   Mr. COHEN. Thank you, Mr. Delahunt.
   I now recognize Mr. Coble from the State of North Carolina,
whose national champions are being honored today on the House
floor.
   Mr. COBLE. Thank you for that unsolicited endorsement, Mr.
Chairman. I appreciate that.
   The Jay Hawker may not like that idea, though.
   Mr. DRAHOZAL. Yes. We can talk about that afterwards.
   Mr. COBLE. Professor Drahozal, in my opening comments, I indi-
cated some thought that maybe these arbitration matters are bi-
ased, either on the one hand to the benefit of the credit card com-
panies, or on the other hand to the benefit of the consumers. Any
kind of comment on that?
   Mr. DRAHOZAL. Certainly, in the study that we did—I mean, a
sort of common concern, which has been expressed by various
members on the panel and by the Committee, is the idea that arbi-
tration may favor repeat businesses over nonrepeat businesses. The
study that—there have been a number of studies looking at that
type of bias of the arbitration process. Typically, what we have find
is, under some measures of repeat businesses, there was no evi-
dence, there was no statistically significant evidence of any sort of
bias or of any difference in result.
   With other measures, we found some evidence that repeat busi-
nesses fare better than nonrepeat businesses, but the reason for
that was that the repeat businesses were more sophisticated at
handling disputes, that the evidence suggested that they tend to
settle disputes more readily than nonrepeat businesses, and they
settle the strong claims against them, which means what is left to
litigate are the weaker claims such that they then tend to do bet-
ter. But it is not evidence of bias; that it is really just evidence of
different claims-handling practices.
   Mr. COBLE. I thank you, sir.
   Professor Frankel, do you have any empirical or supported rea-
son to believe that the State courts would be able to provide trials
to the countless single plaintiff or class action plaintiffs who will
show up on their doorsteps if the credit card and other consumer
arbitration are eliminated? Any idea on that one way or another?
   Mr. FRANKEL. Let me make sure I understand your question cor-
rectly.
                                161

   I think, if consumers were allowed to go to court, there might be
class act—there might be some class actions that proceed in State
courts; and I think State courts are perfectly qualified—that State
court judges are perfectly capable of handling those class actions.
   Mr. COBLE. I am concerned that perhaps a plaintiff may not be
entitled to a class action. He may not be able—Mr. Donovan, do
you want to weigh in on this either way?
   Mr. DONOVAN. Congressman, I think I understand your question,
and that is, if you have an individual case that is unique and that
is not suitable for a class case—and there are thousands and thou-
sands of those. The reality of it is that those individual cases are
almost always filed very quickly in small claims courts, small
claims courts handle them. And almost always the credit card
issuers will settle those fairly quickly because they do not want to
hire counsel to appear in small claims courts; and you get them re-
solved.
   By contrast, Congressman, with the National Arbitration Forum
specified in the contract, the credit card companies uniformly
refuse to settle. Why? Because they own that forum, that is why.
That is why they put it in the contract, and they will fight those
cases.
   So what happens is, arbitration prevents settlement, it prevents
dispute resolution, and it is, in fact, counterproductive at least in
the credit card contract.
   Now, for class cases, you know, class cases are unique. You need
a common question, a common, uniform practice. They are particu-
larly suitable in the credit card industry because it is almost all
computer program. If it happens to one, it happens to all the credit
cardholders; and they are particularly suitable for payment proc-
essing problems.
   I think I discussed one of the biggest things, and I am sure your
constituents have this problem; they say, ‘‘Hey, I sent the payment
in 2 weeks ago.’’ They did not credit it, and they imposed a late
fee on me. Well, what is happening is, many times, these credit
card companies will change the P.O. Box address where you are
supposed to send the payment without telling anyone, and yet they
impose the late payment still.
   Guess what? Anybody can complain. They could say, ‘‘Hey, look,
you never told us that the P.O. Box has been changed; you should
credit me the late payment.’’ They say, ‘‘No, we are not crediting
you a late payment.’’ What do you need? You need a class action.
   Mr. COBLE. My time is about to expire, Mr. Donovan. Let me ex-
tend this to Mr. Arkush.
   Mr. Arkush, I have generally the same question: If we eliminate
mandatory binding arbitration, it seems to me the hordes of credit
card customers will either not qualify for class action, as we just
indicated, or will not be able to afford counsel in their individual
cases; and if I am on the right track, these people may well be de-
nied justice.
   What does Public Citizen say about this?
   Mr. ARKUSH. If we have a well-functioning small claims system,
then people can go there without being able to afford counsel.
Those same people you are describing right now are getting no jus-
                                 162

tice from forced arbitration. As I said, in 34,000 NAF cases, only
118 were brought by consumers.
   The other thing that is important to realize here, I think, is that
an important value that we get from being able to hold a company
accountable in court is deterrence of bad practices. So one answer
to what happens to, you know, the supposed flood of cases that
would go into the civil courts is, there would be fewer cases; there
would be fewer disputes because the companies would know that
they could be held liable, and they would, therefore, act better to
avoid liability.
   Mr. COBLE. Well, thank you, gentlemen. My time has expired.
   I yield back, Mr. Chairman.
   Mr. COHEN. Thank you.
   I recognize the gentleman from Georgia, Mr. Johnson, for 5 min-
utes.
   Mr. JOHNSON. Thank you, Mr. Chairman.
   I would like to hear some discussion about why a public pro-
ceeding, as opposed to a secret proceeding like you have in arbitra-
tion—why it is important for the freedoms that we hold dear under
our Constitution.
   Also, you know, this secrecy with respect to publishing a cal-
endar so that the public—if it were not a secret proceeding, the
public would be able to, you know, just for the heck of it, decide
I am going to go just like I am going to go watch this civil trial
in court. You cannot do the same thing in arbitration.
   So I would like for you all to talk on that; also, the issue of man-
datory rules procedurally; also the application of substantive law,
the requirements or lack thereof in the secret arbitration process.
   Lastly, there are some who believe, including myself, that there
is really no meaningful right to appeal any decision that is made
by these arbitrators. I will say that I am a big fan of all forms of
alternative dispute resolution, including mediation, including arbi-
tration and any other processes that are available, but I just firmly
believe that those should—that those selections should be made
after the dispute arises and not before the dispute arises.
   So could I get some response, please?
   Mr. DONOVAN. Congressman, maybe I am one of the few class ac-
tion trial attorneys in the country, but I have had the honor of try-
ing four class actions in the last 4 years, successfully each time,
and I can tell you this. The need to have—there is a psychological
benefit that is a civic benefit as well to people believing that they
obtained justice in a public way; and it happens not just for the
plaintiff who may succeed, but it is also for the defendant and for
the members of the jury.
   It is remarkable how empowered and important and good they
feel about being part of the American fabric and of the American
community by participating in what is, in essence, the most Amer-
ican thing you can participate in, and that is a jury trial. Even if
you lose, I think everyone comes out of a jury trial feeling that,
Well, look, I got a fair shake; I got a fair chance at justice. And
this is, in essence, the American dream to present your case and
to hear it and have it judged fairly with an American jury.
                                 163

   With respect to how that contrasts with what has happened in
arbitration, I think the proof is in the pudding that arbitration is
so—let me start with this, sir:
   I, too, believe in mediation and in arbitration. In fact, in most of
our cases, we resolve them by using mediators from the American
Arbitration Association, from JAMS; and those are retired judges,
and they mediate and resolve the cases, and we have used them.
The difference is, we have decided to do so voluntarily, and each
side approaches it with that idea, and they work out fine. We pay
for it, and we think we have obtained justice.
   However, when that decision has been made in advance, all of
my clients who have experienced that arbitration process have felt
wronged. They have felt disgusted and dirty by the process because
that forced arbitration is not American. That forced arbitration is
a perversion of justice, and the proof is in the pudding.
   There are some instances in which courts have ordered cell
phone companies and credit card companies to proceed in arbitra-
tion on a class-wide basis. In fact, I have had several cases where
a court has said, Okay, you can go to arbitration, credit card com-
pany, defendant company, but you are going to go to arbitration on
a class-wide basis—in other words, the arbitrator will decide class
certification.
   What has the defendant done in every one of those instances?
No, no, no. We waive our right to arbitration. Why? Because they
know that that would be unfair to them, at least in their percep-
tion.
   So the whole goal of the proarbitration group is to do one thing,
and that is to deny access to justice to American consumers. That
is the only, sole goal for proarbitration in consumer credit card con-
tracts, to deny access to justice; and I just think that is unpatriotic
and wrong.
   Mr. COHEN. Thank you for your questions, Mr. Johnson.
   I now recognize the gentleman from California, Mr. Issa, for 5
minutes.
   Mr. ISSA. Thank you, Mr. Chairman.
   I will try to get the name right. Professor Drahozal.
   Mr. DRAHOZAL. Very good.
   Mr. ISSA. Last week—or actually, I guess it was last week at this
point—we passed a reform bill out of the House overwhelmingly,
that included changes as to whether contracts could, in fact, be
changed at will.
   Are you familiar with the legislation leaving the House?
   Mr. DRAHOZAL. I know of the legislation. I cannot claim to be fa-
miliar with it.
   Mr. ISSA. Well, would you say that it was consistent with limita-
tions that we can place on government or, as government, on the
private sector to say that a contract that is to be changed must be
changed with notice and that that might have been a reasonable
reform that would have responded to some of the other witnesses’
statements that they made earlier, that this was an outrageous
trend to sign binding arbitration and to have changes made with-
out notice?
                                 164

   Mr. DRAHOZAL. Certainly—I mean, to the extent the concern is
that consumers do not know what is happening, a notice require-
ment would be a direct response to that, absolutely.
   Mr. ISSA. So, looking at binding arbitration changes versus
changes in what we allow to be in the contract or in the fairness
of contract in the first place, which would you prefer that we do,
since it appears as though we have bills for both?
   Mr. DRAHOZAL. Yes. I mean, given my role with the Searle task
force, I am not really in a position to state a preference for what
you all should do.
   Clearly, there are alternatives to getting rid of consumer arbitra-
tion, through pre-dispute or otherwise. Altogether changing notice
provisions would be one. I know Senator Sessions has, in the past,
introduced a bill that would set out various procedural require-
ments to be followed in a consumer arbitration.
   I mean, the other alternative, frankly, is that courts do actively
police these, in particularly, class arbitration waivers. It is sort of
striking. Increasingly courts are—when they are troubled by those
sorts of clauses, stepping in and holding them unconscionable or
otherwise unenforceable.
   So there are other—I mean, we are not sort of comparing an any-
thing-goes system to getting rid of predispute arbitration clauses.
There are other, sort of intermediate steps.
   I guess the final thing, just to mention briefly, is that at least
some arbitration providers, like the American Arbitration Associa-
tion, which is part of what we focus on in our study, have their own
private fairness standards, which are similar anyway to the ones
that were in Senator Sessions’ bill, which they do effectively apply.
   Mr. ISSA. Thank you.
   Mr. Donovan, you know, you probably are a plaintiffs’ trial law-
yer.
   Mr. DONOVAN. Yes.
   Mr. ISSA. So I will not call you a hostile witness, but I will say
you are predetermined to give certain answers and, perhaps, fair
to give others.
   If, in fact, we were to eliminate the preemption, the Federal pre-
emption that we are dealing with and allow the States to each have
authority over credit card disputes, would you generally favor that
as a plaintiffs’ trial lawyer?
   Mr. DONOVAN. Well, you are talking to the lawyer who argued
Smiley v. Citibank before the United States Supreme Court, and
that was, of course, the case that said that, contrary to 190 years
of history, late fees will now be deemed interest, because the OCC
redefined ‘‘late fees’’ to be interest so as to preempt every State’s
law that limited late fees.
   No. No. I think, with regard to credit card contracts, that it is
appropriate to have a certain amount of uniformity under the
Truth in Lending Act and certain centralized regulation.
   What is wrong is for the Federal Arbitration Act to basically na-
tionalize 50 States’ laws and preempt those laws when it comes to
contractual doctrines like unconscionability. Right now, the prob-
lem—and this is the reason why Congress needs to act. You have
certain States that have said, California and the Second Circuit in
                                 165

New York have said, Well, these certain provisions of credit card
arbitration clauses are unconscionable, and they are unenforceable.
   You have other States that say, Oh, we are sorry. We understand
you have a very legitimate claim, ma’am, and you have a really
good case, but—and we do not care how unconscionable the clause
is, Federal law preempts.
   Mr. ISSA. Let me do one follow-up for Professor Frankel.
   A hypothetical: If we were to continue to allow States to reach
different conclusions—and let us say that Visa or MasterCard or
both chose not to do business in that State because it became puni-
tive—even if competition came in and set up a one-State credit
card system, would that be in the best interest of commerce to have
essentially 49 States with one system, one with another, and no
way for somebody to take their credit card and traverse the world?
   Mr. FRANKEL. I mean, honestly, I do not see a realistic prospect
of that happening. I think—that comes up in every situation, I
think, where there is a request made to have Federal preemption
in legislation that you cannot have this patchwork of different
State laws. But I think the risk of that is more myth than reality,
and there is not really much empirical evidence in that respect;
and I think——
   Mr. ISSA. Well, Mr. Chairman, if I could just broaden the ques-
tion to anyone who wants to answer it. We have that in insurance,
and insurance companies in many cases do not operate in Cali-
fornia or in other States. So, if we assume for a moment that we
mirror States’ use in insurance and that occurs, is that in the best
interest, from this side of the dais, to allow it to occur?
   Anyone who wants to answer on that.
   Mr. DONOVAN. The only difference is, in certain respects, Con-
gressman, that does prevent systemic failures, as we saw with un-
regulated insurance companies like AIG and other activities that
are not covered by State regulations. So, in that respect, you will
prevent systemic failures.
   In the credit card industry, I do not think it is realistic, because
we do have a fair amount of uniformity in terms of national bank-
ing; and that was a system that was set up after the Civil War and
in the midst of the Civil War.
   I think what needs to be prevented——
   Mr. ISSA. That was before I came to Congress.
   Mr. DONOVAN. Yes. Me, too.
   What needs to be prevented is this patchwork of arbitration deci-
sions that you are now seeing, where some States are saying that
you cannot have arbitration for credit card contracts and where
other States are saying that you can, so that the person in Texas
gets no justice and the person in California gets all the justice.
   And that is what has really happened right now, so Congress
needs to step in.
   Mr. ISSA. Thank you.
   Thank you, Mr. Chairman.
   Mr. COHEN. Thank you, Mr. Issa.
   I now recognize the Subcommittee Chairman on criminal law,
the distinguished gentleman from Virginia, Mr. Scott.
   Mr. SCOTT. Thank you, Mr. Chairman.
                                  166

   My friend from California’s opening remarks mentioned centuries
of jurisprudence, suggesting that credit card issuers may have an
absolute right to these binding arbitration agreements.
   Can somebody speak to the centuries of jurisprudence and how
they apply to these claims, especially on adhesion contracts and
antitrust, to demonstrate that we, consistent with centuries of ju-
risprudence, do have the authority to regulate these contracts?
   Mr. DONOVAN. I hate to be hogging the floor, but it is my job,
Congressman. Yes, I can speak to that.
   You are alluding to the Second Circuit’s decision in Ross v. Amer-
ican Express where that court has now allowed claims, that the
credit card industry has conspired to all include arbitration clauses
in their agreements, to go forward.
   The fact of the matter is that there is a lot of evidence of that,
because I saw the meetings. The lawyers for the credit card compa-
nies would get together at the American Bar Association meetings
and come to agreements on what language they would include in
credit card contracts, and they would all use that same language
in their arbitration clauses. And they all got together and said: Oh,
yes, yes, let us use this; this is good language.
   Now, what they are trying to do is to provide, you know, a fine
print opt-out. So, if the consumer receives this 25-page credit card
agreement and does not opt out within 20 days of receiving it, that
will be deemed consent to participate in arbitration. I mean, how
silly is that?
   I mean, that is ridiculous, but that is what—we are talking about
people who are paid hundreds of thousands of dollars and who
have earned major league MBAs to see how they can get $30 addi-
tional out of each one of their cardholders, because that brings $30
million to the bottom line this month.
   That is what the reality of it is, and that is what they do. They
go to school for it, and they get trained for it, and that is what is
happening.
   Now, in terms of 100 years or 200 years of jurisprudence, there
has been 200 years of jurisprudence that has prohibited unfair, un-
conscionable, adhesive contracts. Those are contracts that are of-
fered by the stronger party that take unfair advantage of the weak-
er party.
   The definition of an ‘‘adhesive, unconscionable contract’’ is a cred-
it card contract with an arbitration clause. And I am not the only
one who says that; the California Supreme Court has said it, the
Ninth Circuit Court of Appeals has said it. The only court that has
not come out and directly said that is the United States Supreme
Court, and the reason basically is that, until now, it basically has
not had to confront that issue because, to the extent that it ever
gets to that point, the credit card industry is wise enough to say,
Okay, we give up, we settle; here is your $105 million. So that is
basically it.
   But the problem, Congressman, is that there are courts that will
enforce these provisions. I mean, the Fifth Circuit enforces arbitra-
tion clauses, the Fourth Circuit enforces arbitration clauses; until
recently, the Third Circuit Court of Appeals, my own court in
Philadelphia, enforced arbitration clauses that required people with
foreclosure disputes to go both before an arbitrator while their
                                 167

home was being foreclosed upon by a court. And this split-forum ef-
fect was that people had to have—you know, had to go to two dif-
ferent places at the same time to save their houses. They were en-
forcing those.
   The reason why we need this Congress to act is because that is
wrong. It is just not right. It should not happen, and the Arbitra-
tion Fairness Act should be passed.
   I also want to say thank you to Congressman Johnson for pur-
suing this each year. I appreciate it.
   Mr. SCOTT. So the point is, there is nothing inconsistent with
centuries of jurisprudence? It is in no way inconsistent with cen-
turies of jurisprudence?
   Mr. DONOVAN. Not at all.
   Mr. SCOTT. Mr. Arkush, can you tell me the status of the case
that is pending, the Komarova case that you mentioned in your
statement? Where is it procedurally?
   Mr. ARKUSH. I believe, actually, that she has finally managed to
get the award against her thrown out.
   Mr. SCOTT. And is that a final decision, do you know?
   Mr. ARKUSH. I believe so. Does anybody else know? I believe so.
   Mr. DRAHOZAL. That would not surprise me because ground for
vacating an award is if you never agreed to arbitrate in the first
place. But I do not know the case.
   Mr. SCOTT. Thank you.
   Finally, Mr. Donovan, can you just make a quick statement? You
have talked around this.
   If a company comes up with a scheme where you rip off and de-
fraud millions of people of a couple of dollars, what does prohibition
against the class action do to those claims?
   Mr. DONOVAN. Well, it basically prevents anybody from pursuing
those claims.
   But, you know, the real question here, Congressman, is there is
a fine-line difference between, you know, a banker and a bank rob-
ber. A banker, if you take $1 from a million people, you are called
a ‘‘banker,’’ but if you take $1 million from one bank, you are called
a ‘‘bank robber.’’ Really, if, in fact, the 1 million people had as
much clout as the banks have had, well, then those people would
have outlawed this type of bank robbery.
   Mr. COHEN. Thank you, Mr. Scott.
   We are ready for our second round.
   Mr. Franks.
   Mr. FRANKS. Well, Mr. Chairman, I hardly know where to start.
I have learned that a Federal trial is the most American thing we
can do. You know, sometimes I think I want to step back here for
a moment and ask myself, What are we really discussing here?
   Really, what we are discussing is the agreement on the part of
the credit card companies. They put in their agreements that—be-
cause there are oftentimes people who do not pay their bills, they
put in the contract clause something that would require, as part of
receiving the credit card, that people subject themselves to agreed
binding arbitration.
   My fear is that, if we do away with that, we will end up hurting
a lot of people where they just do not get credit, because sometimes
I think that my dear friends on the other side of the aisle feel that
                                168

somehow, in Congress, we can repeal the laws of cause and effect
in mathematics.
  We saw that, I think, in the whole housing situation where well-
motivated, well-intentioned efforts to help people have homes put
great pressure on banks to make subprime loans and things like
this that simply could not withstand the test of reality; and we
ended up, I think, having largely a government-incented economic
meltdown because of it.
  If we continue to put more and more and more load on the econ-
omy and on the businesses and on the private sector here that are
trying to make things happen that are ultimately good for every-
one, I think we are going to wake up some morning and realize
that we are kind of under all of it.
  So I guess, Mr. Drahozal, I will just go ahead and ask you. The
bottom line of your study, that consumer arbitrations you examined
were faster than litigation, were cheaper than litigation and were
essentially fair, was that pretty much the bottom line of your
study?
  Mr. DRAHOZAL. I cannot say quite that strongly at this point
without the second phase of the study because, as you sort of—the
comparison we have not yet done. Certainly, we found evidence
that costs to the consumer, the up-front costs, actually are even
lower than the low-cost arbitration rules provide for the AAA, and
that the proceedings seemed to go at a fairly quick rate. There was
certainly no evidence of any repeat player bias, as I discussed be-
fore.
  So I guess I would agree with your statement with the caveat
that we are not yet able to compare it to litigation, but that that
phase will be coming.
  Mr. FRANKS. Okay. Well, do you think it would be helpful to do
additional research then in the process of doing that?
  Mr. DRAHOZAL. Absolutely. Again, I have been very pleased with
the focus that the Committee and commentators have had on em-
pirical work, and it really seems to me important to know what you
are getting into before you do it. And as you noted, the work is in
progress, and we will be doing it as quickly as we reasonably and
sort of conscientiously can do.
  Mr. FRANKS. This is, rather, an obvious question, but when there
are class actions on behalf of a group of consumers, isn’t it true
that most consumers receive a very, very, very small pittance
amount for their part of the class action?
  Mr. DRAHOZAL. There certainly are class actions like that. I
mean, that seems to me to be actually another area where more de-
tailed knowledge would be useful to know exactly how often, how
much, and what consumers get and to what degree.
  There was a recent study on employment arbitration, which obvi-
ously isn’t directly applicable, but that compared what employees
got in class actions to studies of what employees got in arbitration.
And there are some issues with the study, but the study basically
found that employees got more in arbitration than they did in class
actions.
  So that type of study would certainly be very useful to do in the
consumer setting.
                                 169

   Mr. FRANKS. We have been told that there is a fine line here be-
tween bankers and bank robbers this morning. I am wondering,
what group is favored the most with these class actions? Who
makes the most money out of it?
   Mr. DRAHOZAL. Well, with that one, I am not in a position to say.
There are obviously various parties that make money, the lawyers
probably on both sides. Presumably, the bankers do not make
money through the class actions.
   Mr. FRANKS. I would not think so.
   Mr. DRAHOZAL. But, again, that is not something I can answer
sort of definitively because it is beyond my area of expertise.
   Mr. FRANKS. Well, it sounds like in class actions the consumers
do not make a lot of money and the bankers do not make a lot of
money, but it seems that it is pretty clear that the lawyers make
a great deal of money.
   I am being, you know, a little facetious here, but I felt like there
had to be some response to some of the comments made here. So
I guess the bottom line, Mr. Chairman, is that when we inject our-
selves into the private market and say that you cannot make these
kinds of agreements—because that is really what we are doing
here.
   There is nothing that forces arbitration on anyone that they do
not agree to say, ‘‘Yes, I agree that I will subject myself to arbitra-
tion’’; and to take that tool away from business is not only to clog
our courts, but to make credit harder and more difficult to make
available for the very people who need it most.
   With that, I yield back.
   Mr. COHEN. Thank you, sir.
   Professor Drahozal, do you see a virtue in class action suits in
general?
   Mr. DRAHOZAL. Certainly, in theory, they are a very sensible way
to resolve disputes if you aggregate small disputes.
   Mr. COHEN. Does the class action attorney serve somewhat as a
private attorney general in terms of showing up some defect in the
business, the contract of the relationship, which could then be
cured by the imposition of a large class action judgment?
   Mr. DRAHOZAL. Again, that certainly is the theory behind class
actions as well as attorneys’ fees—shifting statutes and so forth.
There are various ways that the justice system has structured
things to try to give private parties incentives.
   Mr. COHEN. So is there a way that you can see where you could
have arbitration for smaller cases, individual cases, but still permit
class action suits, so that when there is a uniform—not an indi-
vidual but a uniform policy or activity that is taking place, such as
the changing of the address on the barcode—that justice could be
had through the civil courts?
   Mr. DRAHOZAL. It seems to me there are two possibilities. One
is a number of courts, as I noted earlier, have, in fact, refused to
enforce class arbitration waivers, which has had the effect of the
cases proceeding as class actions. I mean, that is, under the current
structure of the Federal Arbitration Act, a permitted approach, and
State courts have increasingly been doing that.
   A second alternative would be arbitration on a class basis,
which—I think, the AAA has several hundred cases now that it is
                                 170

administering on a class-wide basis. So there are ways in which ar-
bitration can coexist with class relief.
   Mr. COHEN. Professor Frankel, is there a way to have a bifur-
cated system where certain claims can go to class actions and jury
trials and where others might be still limited to arbitration?
   Mr. FRANKEL. I think that is certainly preferable to the system
that we have now.
   Just to build on what Professor Drahozal said in terms of courts
that are refusing to enforce class action bans, I do not think that
is an adequate substitute, because what is happening now is that
credit card companies will write in, in their contracts, to apply that
their contracts must be governed by the laws of States that will en-
force class action bans. So they are getting around that by the way
that they draft their contracts. So I do not think that is going to
be an adequate substitute.
   I think, you know, how you deal with their—there are still, I
think, potential problems that some of the other witnesses have
mentioned about individual cases, but I think removing sort of the
class action types of cases in either saying, those can proceed in a
class-wide arbitration or can proceed in class actions is certainly a
benefit, but you have to make sure that there are the procedural
protections that occur in class actions also.
   Mr. COHEN. Thank you.
   Mr. Donovan, you heard as I heard the statement that was re-
peated, I think, by quite a few Congress people, ‘‘plaintiff class ac-
tion attorney,’’ as if, you know, I guess, it is redundant. I guess you
could be a defense class action attorney; I do not know.
   In your case where the credit card company was changing the
address, now, you were capable of going to court because that juris-
diction or that circuit does not recognize the ban; is that correct?
   Mr. DONOVAN. Several of these cases preexisted the imposition of
class prohibitions in arbitration or preexisted arbitration clauses in
the credit card contracts. The credit card contracts basically started
having arbitration clauses installed in them in about 2002. That is
when the industry met at an ABA meeting and decided, ‘‘Let’s put
arbitration clauses in all of these contracts in order to destroy
these claims that the industry was confronting.’’
   So Providian predates that and the Rossman v. Fleet case where
they said they promised no annual fee, but then they imposed an
annual fee on everybody within 3 months. A lot of those cases pre-
dated arbitration. The subsequent cases are cases that emanate out
of California where the California courts have found arbitration
clauses that prohibit class actions to be unconscionable. So those
proceed that way.
   Mr. COHEN. In your particular case, what jurisdiction were you
in?
   Mr. DONOVAN. For the Fleet case, we were in Philadelphia. We
were in the Federal court in Philadelphia and the Third Circuit
Court of Appeals.
   Mr. COHEN. So that was a preexisting situation?
   Mr. DONOVAN. Correct.
   Mr. COHEN. What was their defense? Did they say it was a mis-
take or did they just say, ‘‘We screwed people’’?
                                 171

   Mr. DONOVAN. Well, in the Providian matter, the Providian mat-
ter was, you cannot bring any State law claims because they are
all preempted by Federal law. In Federal law, the Truth in Lending
Act allows us to do this, and, Oh, by the way, we are allowed to
charge these late fees because they are permitted by the Truth in
Lending Act. They basically had a preemption defense to that
claim.
   Mr. COHEN. I am talking about the one where they changed the
address on the barcode.
   Mr. DONOVAN. With changing the address on the barcode, we did
not get to hear the defense because, once we pointed that out and
the witness who testified about it, they settled.
   Mr. COHEN. Never did they claim it was an accident?
   Mr. DONOVAN. No, they never claimed it was an accident. In fact,
there was a memo saying, Well, if we have everything sent to this,
we will increase revenues by this amount.
   Mr. COHEN. Under the system we have today, could you bring
that action under a fraud charge and get around this, or would you
be barred under the arbitration act?
   Mr. DONOVAN. I do not think we would bring it as a fraud charge
per se because fraud charges are hard to get certified as a class ac-
tion. What you bring it as is a violation of the Truth in Lending
Act. You bring it as a breach of contract. You bring it as an unfair,
deceptive practice because there really was not a representation, a
promise that said, Oh, by the way, this barcode says it is going to
the right address, because nobody can read barcodes, so you cannot
really have a fraud claim, but you could have an omission claim,
and you could have that certified.
   Could you bring that in an arbitration case? What it took was—
it actually took a fair amount of forensic, you know, analysis. We
had to spend the money to find out that is what was happening,
because we could not figure out, Why are people sending these
things 2 weeks in advance, but the bank is saying we did not get
them? We finally figured it out, and then finally they came clean
that, Oh, yes, we intentionally did that.
   So—and then, you know—and then changing, you know, the
Fleet case. What Fleet said was, Oh, yes, when we sent out the
promotional rate that said ‘‘no annual fee,’’ 3 weeks later the Fed-
eral Reserve increased interest rates, so therefore we have to put
the annual fee on because otherwise our revenues will not be
enough.
   They sent out a letter saying, Because the Federal Reserve in-
creased interest rates, we are going to impose an annual fee; and
the court said, Uh-uh, ‘‘no annual fee’’ means at least no fee for the
first year. Otherwise, it is a breach of contract.
   Now, if there was an arbitration clause, you know, we were—
Ballard Spahr was defense counsel. They were a very good firm,
honorable, decent. They defended the case, and they came up with
a lot of good arguments, preemption and everything. One indi-
vidual person could not beat those lawyers; they are good lawyers.
If they did not have other counsel, they would have lost. So you
had to pursue that as a class case.
   This happens—you know, look. The reality of it is that Citibank,
Bank of America, Wells, they hire the best, brightest lawyers in the
                                 172

Nation. Included among them is Sidley & Austin. I mean, you
know, the Sidley & Austin firm defends the tax evasion, you know,
the tax shelter cases, you know, where everybody said they got hit
by the IRS because of tax shelters that were disallowed, and they
bring claims against the accountants and the lawyers.
   Well, the first thing that the defendants do in those cases is say,
Oh, arbitration; oh, yes, we know we did not sign the arbitration
clause, but a third party that we are related to, you know, by sec-
ond-cousin status signed one, so we are subject to that arbitration
clause.
   And that is what the defendants do.
   Mr. COHEN. Thank you, sir.
   Mr. DONOVAN. So this has to be passed. The Arbitration Fairness
Act has to be passed.
   Mr. COHEN. Mr. Delahunt.
   Mr. DELAHUNT. Yes. Thank you, Mr. Chairman.
   If there is a provision in a credit card contract that says at the
end of the terms and conditions that the credit card company or
issuer can change the terms at any time they want, and all the
terms and conditions that were enumerated previously, would that
fit the definition of an ‘‘adhesion contract’’?
   Mr. DONOVAN. Well, that is what the credit card contracts are
now. Yes, they are adhesion contracts because they are take-it-or-
leave-it contracts. You either take it or you leave it. That is what
the adhesive thing is.
   The thing that is different about the credit card contract—and
they try to justify this because it is a revolving line of credit—is
that they can change any term at any time for any reason. So if
you are counting on having this money at 6 percent interest for a
year, because that is when the date of your expiration on your card
is——
   Mr. DELAHUNT. Mr. Donovan—and my point is and I obviously
agree with you and I understand that, but to call that a ‘‘contract’’
is, you know, flattery taken to a different level. I mean, that is
just—that is a joke. That is what it really is. Of course, it is an
adhesion contract.
   When I hear that, Well, you have contractual obligations, that is
not a contract. It just is not a contract.
   In terms of class actions, one aspect of the rationale for class ac-
tion suits is to serve as a deterrent to bad practices. In other
words, it is not just simply above compensating or redressing those
members of the class, but it is preventing bad behavior post the
ruling, the decision in the case.
   Am I stating it accurately, Mr. Donovan?
   Mr. DONOVAN. The way I like to look at it, Your Honor, is—be-
cause we always talk about this from the perspective of consumers
or homeowners or anything. It is a moral hazard. This device im-
poses a moral hazard on credit card companies to ‘‘do not do this,
or else you are going to increase the cost on you alone.’’ So it im-
poses a moral hazard on the whole thing so others who are observ-
ing it will not do that, too.
   The benefit is that that helps investors to have confidence to buy
these securities that are backing up the credit card product; and
the moral hazard is then presented on the bad actor alone, pin-
                                173

pointed, and the others get to observe, and they are deterred from
engaging in the same bad practice.
  Mr. DELAHUNT. Thank you. That is all I have.
  Mr. COHEN. Mr. Johnson, do you have any further questions?
  Mr. JOHNSON. Not at this time, Mr. Chairman. I would be happy
to yield the balance of my time to either one of my colleagues here,
Mr. Delahunt or to, of course, Mr. Scott.
  Mr. COHEN. Thank you, sir.
  Mr. Scott, you are recognized with the balance of Mr. Johnson’s
time.
  Mr. SCOTT. Thank you, Mr. Chairman.
  I do not have any questions, but I would just thank the panel,
particularly Mr. Donovan, for pointing out that adhesion contracts
do not have to be enforced, and that is absolutely consistent with
centuries of jurisprudence.
  Furthermore, if you conspire with others to put the same provi-
sions in a contract, that violates that antitrust law so that what
we are doing with these bills—what we are doing is absolutely con-
sistent with centuries of jurisprudence. What the bills would do
would be to add some consistency, so regardless of what State you
are in, you can benefit from reasonable consumer law.
  I would yield back.
  Mr. COHEN. Thank you, Mr. Scott.
  I do not know if we need another round or not but, Mr. Franks,
do you have any further questions?
  If not, I think we have had a very healthy discussion, and I think
there has been the best attendance that we have had at this Sub-
committee. I want to thank the witnesses on the issue for eliciting
that. We thought we had to call the fire marshal at one point—too
many Members up here—but we did not, so I would like to thank
you all for your testimony and for your attemtiveness.
  Without objection, Members have 5 legislative days to submit
any additional written questions, which we will forward to the wit-
nesses and will ask you to answer as promptly as you may, and it
will be made part of the record.
  Without objection, the record will remain open for 5 legislative
days for the submission of any other additional materials.
  I thank everyone for their time and patience. This hearing of the
Subcommittee on Commercial and Administrative Law is hereby
adjourned.
  [Whereupon, at 12:04 p.m., the Subcommittee was adjourned.]
           APPENDIX


MATERIAL SUBMITTED   FOR THE   HEARING RECORD




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RESPONSE   TOPOST-HEARING QUESTIONS FROM MICHAEL D. DONOVAN, ESQ.,
            NATIONAL ASSOCIATION OF CONSUMER ADVOCATES
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                               181
RESPONSE   TOPOST-HEARING QUESTIONS FROM RICHARD H. FRANKEL, ESQ.,
            DREXEL UNIVERSITY EARLE MACK SCHOOL OF LAW
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                                     185
RESPONSE   TO   POST-HEARING QUESTIONS FROM CHRISTOPHER R. DRAHOZAL, ESQ.,
                     UNIVERSITY OF KANSAS SCHOOL OF LAW
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                                     191
RESPONSE   TO   POST-HEARING QUESTIONS   FROM   DAVID ARKUSH, ESQ., PUBLIC CITIZEN
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